1832159 (Refugee)

1832159 (Refugee) [2023] AATA 4809 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rayan Hazim (MARN: 5512171)
CASE NUMBER:  1832159
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Paul Noonan
DATE:11 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 December 2023 at 2.12pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – convert from Sunni to Shia Islam – previous application for protection refused – previous claims of past harm abandoned – false and forged documentation provided – mental health – credibility – timing and circumstances of claimed conversions and long history of false claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] May 2012 on a Student (Class TU Subclass 573) visa. He then departed Australia on [date] March 2013 and arrived back on [date] March 2013 still on a student visa. He then lodged a protection visa claim on 2 May 2013. This was refused by a delegate on 17 March 2014. It was also subsequently refused on appeal by the Refugee Review Tribunal (RRT). The applicant then departed Australia using his student visa [in] April 2015 and arrived back in Australia and entered again on his student visa [in] May 2015. He then proceeded to lodge another protection visa claim on 4 June 2015. His student visa expired on 19 September 2015.
The applicant claims to be a citizen of Pakistan.
In his latest application for protection the applicant has reagitated his claims made in his prior application made on 2 May 2013. The delegate and RRT in reviewing that prior application both found that the applicant had fabricated his claims and there was no basis in the evidence for considering there was a real chance of persecution or a real risk of significant harm to the applicant should he be required to return to his home city of Karachi in Pakistan. With respect to the applicant’s latest claim for protection, lodged on 4 June 2015, the delegate refused to grant the visa on the basis that the applicant had fabricated his claims. The delegate found that there was no basis for finding that there was a real chance of persecution or a real risk of significant harm to the applicant should he be required to return to his home city of Karachi in Pakistan. The applicant supplied the Tribunal with a copy of the delegate’s decision.
The applicant appeared before the Tribunal on 23 November 2023 to give evidence and present arguments. The Tribunal noted that the applicant has claimed he suffers from mental health problems. The applicant confirmed he was ready and able to participate in the hearing with the Tribunal. The applicant was represented in relation to the review and his representative attended the hearing. The Tribunal was satisfied that at all times, the applicant was able to meaningfully engage with the questions asked of him by the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of reference and third country considerations
The delegate was satisfied that the applicant’s country of nationality is Pakistan, and the Tribunal is also satisfied of this. A copy of the applicant’s Pakistan passport is retained on the Department file. The Tribunal has accordingly assessed the applicant’s claims with respect to Pakistan as the country of reference or receiving country for the purposes of this appeal. The applicant has not made claims nor is there any evidence to indicate that he has a right to enter and reside in any third country. The Tribunal finds the applicant has no such right.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Commonwealth is required to provide the applicant with protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant informed the delegate in his interview, conducted on 7 August 2017, that the claims he made on his previous protection visa application were true and correct. In his first application he stated that he had changed from Sunni to Shia Islam prior to coming to Australia to study. Sunni religious parties did not like this and threatened to kill him and his family. He returned to Pakistan in March 2013 because of his mother’s death and he, his father and brothers were attacked by Sunni extremists. He was attacked while there. He fled to Australia and applied for protection. The applicant built upon these claims in subsequent interviews and claims, introducing claims that various members of his family were attacked, his uncle was killed by extremists, that he persuaded various members of his family to also convert to Shia Islam, that, when returning to Pakistan in 2015 to meet his arranged bride, his brother-in-law was killed by extremists after they witnessed the shooting of a police officer. That he fled to stay with his brother-in-law’s family who then tortured him as they blamed him for the death. That he then fled back to Australia and applied for protection again.
The applicant submitted a statutory declaration, dated 14 November 2023, to the presently constituted Tribunal prior to the hearing. In this declaration the applicant submitted that this statement replaces his previous claims for protection and that not all of what he previously claimed was true and correct. The applicant stated that he now claims protection on the basis that he fears persecution because he is a convert from Sunni Islam to Shia Islam, because he will be imputed to support Shia political groups and because he suffers from mental health issues. The applicant resiled from all claims of past harm including claims that he was ever of adverse interest to Sunni extremists, that his brother and uncle were killed, his sister was shot, he was abducted and he witnessed the assault and shooting of a police superintendent and provided witness testimony about this and was threatened and that he was tortured by his brother-in-law’s family.
The applicant submitted that he had lied in the past because he was only [age] years old when he first arrived in Australia and he had taken bad advice from a Shia family he was staying with. He claimed to still fear persecution because he is a convert from Sunni Islam to Shia Islam. He travelled back to Pakistan in 2015 as his father had arranged for him to marry a Sunni woman. He met the girl but refused the marriage as he preferred to marry a Shia girl. The applicant confirmed that he speaks regularly to his family and he has not made a claim to fear harm for reason of refusing this marriage.
He applicant also claimed that he fears persecution because he has lived in Australia for so long and because his mental health is poor.
The applicant’s legal representative made a written submission to the Tribunal prior to the hearing. In this submission the representative stated that the applicant had converted to Shia Islam while residing in Australia. He fears persecution in Pakistan on this basis. He fears he will be identified as a convert because of his Sunni name and be accused of blasphemy. He also fears persecution due to his mental health, as a failed asylum seeker and as a person who has spent a long time in the West. He also fears persecution due to an implied political opinion that he is a critic of the government and a supporter of Shia political parties. Following the Tribunal hearing the applicant’s representative made further extensive submissions and submitted country information with respect to Pakistan censorship of religiously motivated hate crimes against Shias, anti-Shia violence and persecution of Shias in Pakistan.
The hearing
The applicant confirmed that all of his family including his father and all his siblings still reside in Karachi where he was born and grew up. He confirmed they all follow Sunni Islam. No member of his family has ever suffered harm in the past for a refugee reason. His father works as [an Occupation 1]. It was a joint decision between himself and his father to come to Australia and study [Subject 1]. However, he had struggled with his studies as he was struggling being away from his family after his mother had passed away.
In Australia he has worked in a variety of jobs including in hospitality, retail, security and his current work as [an Occupation 2]. He stated that he also has no education and fears he could not get a job in Pakistan.
The Tribunal discussed with the applicant the fact that he was claiming to suffer from mental health issues. He submitted that he sometimes feels dizzy and has some blurred vision. He sees a General Practitioner and sometimes takes sleeping pills. He did not submit any recent medical diagnosis or opinions with respect to this claim for the Tribunal’s consideration.
The applicant submitted to the Tribunal that he converted from Sunni Islam to Shia Islam while he was in Pakistan aged [age]. He was just asked to recite some Shia verses to convert. When it was pointed out that his representative stated he had converted in Australia he stated that he had converted again in Australia at the behest of the Shia family he was staying with. He was not sure why they asked him to do this as he already knew how to pray as a Shia. When discussing his reasons for converting the applicant reiterated themes he had made in the past that he was disillusioned with the aggressiveness of Sunni Islam and because of past exposure to Shia teachers in his mixed Sunni/Shia school.
While his family was against his conversion relations are now cordial and he speaks to his father regularly.
When asked what he does with respect to expressing his faith in Australia the applicant stated that he attends the [Suburb 1] mosque for Friday prayers. He participates in the large Shia festivals. Mostly he prays at home. He did the walk from [Location 1] to [Location 2] on the 10th of Muharram. He then had a get together at his house where participants beat their chests.
Claim – conversion from Sunni Islam to Shia Islam
The Tribunal has significant credibility concerns with respect to this claim. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
For the following reasons the Tribunal does not accept as credible the applicant’s claim to have genuinely converted from Sunni Islam to Shia Islam.
Firstly, the applicant has fabricated all of his claims to have suffered past harm in Pakistan for reason of his conversion and has presented significant levels of false and forged documentation in support of these false claims. This causes the Tribunal to doubt that he has genuinely converted from Sunni Islam to Shia Islam as he has sought to embellish this claim with significant levels of false evidence for many years.
Secondly, the applicant further embellished his claims of past harm for reason of his conversion by introducing a further concocted claim of fearing persecution for reason of having witnessed a police officer assassination by extremists leading to his brother being killed and him being tortured. This further causes the Tribunal to doubt the applicant is a witness of truth.
Thirdly, the applicant has maintained his false narrative of past harm for many years throughout a Department interview, an appeal by this Tribunal and a further application for protection and interview with the Department. When this was discussed the applicant implausibly sought to blame his long history of presenting false claims and false and forged evidence on the Shia family he first lived with when coming to Australia and his youth. He had many subsequent opportunities to step away from his false claims and present his true case but chose not to do so. The Tribunal considers this long history of maintaining his false claims significantly undermines the overall credibility of the applicant’s conversion claim and gives this history significantly more weight than the applicant’s recent claim to now be telling the truth.
Fourthly, and as discussed at hearing, the timing of the applicant’s claimed conversion is deeply suspicious, when seen in conjunction with the false evidence he has presented with respect to this claim. He claims to have converted just prior to travelling to Australia and has not presented any particular catalyst for doing so. The applicant’s response to the Tribunal’s concern was that he was not sure if he would get the student visa at the time he converted, and therefore this should not be seen as suspicious, and it was only after returning in 2013 and seeing high levels of sectarian violence that he was motivated to apply for protection. The Tribunal considers this explanation to be unconvincing. The Tribunal considers it is far more plausible that the applicant was planning to apply for protection at the time of his initial travel to Australia and was concocting and compiling false claims and evidence of harm over time to strengthen his eventual claim. Accordingly, the Tribunal considers he decided to fabricate a claim to have converted prior to him arriving in Australia and then concoct false claims of harm following on from this claimed conversion.

Fifthly, the applicant has given contradictory and implausible evidence that he converted on two separate occasions when it was pointed out to him that his representative had stated he converted in Australia. When this was questioned by the Tribunal the applicant submitted that he had done so at the behest of the family he was staying with in Australia, (that he also blames for being the reason for him presenting false claims). He could not provide any plausible reason why the family required him to do this, or why he would feel the need to do so. The Tribunal would expect that once a person had genuinely converted he would not then need to convert again. This confused and implausible evidence causes the Tribunal to further consider that the conversion was not actually genuine and done only for the purposes of strengthening his refugee claims. This also causes the Tribunal to doubt the applicant has genuinely converted from Sunni to Shia Islam.
Overall, given the cumulative credibility concerns of the Tribunal as set out above, it concludes that the applicant has concocted his claim to have genuinely converted from Sunni Islam to Shia Islam. The Tribunal rejects the applicant’s claims in this regard and finds that if he were to return to Pakistan he would do so as a Sunni Muslim and would resume his life there as a Sunni Muslim. It follows that there is no real chance of serious harm in Pakistan either now or in the reasonably foreseeable future for reason of the applicant’s claimed conversion.
Claim – imputed political opinion – supporter of Shia political parties
The applicant claimed that he would support Shia political parties with money and assistance because he is a Shia person. The Tribunal has already rejected the applicant’s claim to have converted from Sunni Islam to Shia Islam as not genuine. The applicant also confirmed to the Tribunal that he has never been politically active in the past. The Tribunal rejects the applicant’s claim that he would seek to support Shia political parties. This is because he has not genuinely converted to Shia Islam and also because he has never shown an inclination to become involved in politics in the past. The Tribunal concludes that there is no real chance of serious harm to the applicant for reason of his actual or implied political opinion should he be required to return to Pakistan either now or in the reasonably foreseeable future.
Claims − failed asylum seeker / critic of the Pakistan government and returnee from the West
The applicant confirmed to the Tribunal that the basis for his fear of persecution by the Pakistan government is that he will be perceived as an opponent because he has been away from the country and claimed asylum. As such this claim is the same as his claim to fear persecution as a result of being a failed asylum seeker. He confirmed this is because he believes the Pakistan government does not like people to claim asylum and they will treat him badly.
With respect to being a returnee from the West, the applicant submitted to the Tribunal that he had spent 12 years in Australia and he is used to the laws and regulations. He fears he will be treated badly in Pakistan as people will know in the community he has been away for a long time and might think he has money. As a result, he postulated that he might be targeted for extortion. When asked who might do this he somewhat vaguely stated he fears general criminals would do this because he would not be able to fit into the culture and he would stand out due to his habits of doing the right thing such as not engaging in bribery and observing the road rules as well as because of the clothes he would wear.
The Tribunal put to the applicant that DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country.[2]
[2] DFAT Country Information Report, Pakistan, 25 January 2022, p 44
The applicant departed Pakistan legally. The applicant has not expressed opinions or committed crimes either when in Pakistan, or while abroad, that may draw him to the adverse attention of the Pakistan authorities.
The Tribunal finds that, if the applicant were to return to Pakistan, he would return to Karachi where his father and all of his immediate family reside. In such circumstances, and given the DFAT assessment set out above and the Tribunal’s consideration of the manner in which he departed Pakistan and his behaviour since then, the Tribunal considers the arguments as to why he would be subjected to persecution for these reasons to be highly speculative such that they are not real. The applicant would be returning to a familiar and supportive environment and country information reflects that there is not a significant risk that persons with such backgrounds will be targeted for violence or discrimination. These factors cumulatively cause the Tribunal to conclude that there is no real chance of serious harm to the applicant should he be required to return to Pakistan for reason of him being a failed asylum seeker, an imputed critic of the Pakistan government or a returnee from the West.
Claim – mental health
When the basis for this claim was discussed with the applicant he again gave somewhat vague reasons for claiming this fear of persecution should he be required to return to Pakistan. He variously stated that he fears lack of treatment, that he won’t be able to find a job, he won’t have support from anyone, he will just be placed in a mental hospital and subjected to electronic shots. The applicant submitted that it would be hard for him in Pakistan, as he would be scared, and he fears this would exacerbate his mental health problems.
DFAT assesses that mental health disorders are common in Pakistan and people suffering from these disorders largely go untreated due to a chronic lack of medical resources. There is no suggestion that such persons are targeted for persecution in Pakistan for reason of their mental health disorder. The Tribunal finds that the applicant’s claim in this regard to fear persecution is not for a refugee reason as per the requirement set out at s 5J(1)(a).
Claim – the applicant’s ability to support himself
While giving evidence the applicant mentioned that he fears he would not be able to get a job. While not explicitly stating or confirming to the Tribunal that he fears persecution for this reason separate to his mental health claim, the Tribunal has considered the claim as an implied claim with respect to his level of education, training and the state of the economy. When the Tribunal raised with the applicant that his father runs a [business] in Karachi and it may consider this may provide him with a ready employment opportunity he simply stated that he does not know how to sell [products]. The Tribunal considers that the applicant is relatively young and healthy and has demonstrated resourcefulness in establishing himself in Australia and finding work here. He has good relations with his family in Karachi and his father has run a successful business there. The Tribunal considers the applicant would have reasonable job prospects should he be required to return to Pakistan and that he would have reasonable prospects of learning how to sell [products] should he need to. The Tribunal concludes that there is no real chance of serious harm to the applicant should he be required to return to Pakistan for reason of his claimed inability to support himself by finding a job.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm.
For the reasons set out above, the Tribunal has not accepted there to be a real chance the applicant will face serious harm for reason of his status as a failed asylum seeker, as an imputed critic of the Pakistan government, as a returnee from the West, because he could not find a job, or his claimed conversion to Shia Islam if he returns to Pakistan. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3] For the same reasons the Tribunal does not accept there to be a real risk he will be subjected to significant harm for reason of his status as a failed asylum seeker, as an imputed critic of the Pakistan government, as a returnee from the West, because he could not find a job, or his claimed conversion to Shia Islam as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
Claim − mental health
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal accepts the applicant’s assertion that he suffers some mental health problems manifesting as mild depression and anxiety.
The Tribunal discussed with the applicant that, while it can accept that the standard of medical treatment he may receive in Pakistan, should he require it, may not be to the same standard as he would receive in Australia, to fall within the definition of significant harm necessary to qualify for complementary protection there must involve an element of intent in the inflicting of the significant harm and it was not clear to the applicant who would intentionally inflict such an act or omission resulting in such harm. The applicant simply stated in general terms that people of the community will not treat him well and his family will bully him. Further that depression levels are high in Pakistan and general health care is poor.
The Tribunal considers that the applicant’s claim that his family will bully him for reason of his mental health is highly implausible and entirely speculative and rejects this newly introduced claim.
Further, there is nothing before the Tribunal to indicate that medical treatment will be intentionally withheld from the applicant in Pakistan should he require it (as opposed to it simply being unavailable) or that he will be intentionally targeted for significant harm due to the state of his mental health.
For these reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm from any person or group, for reason of his current state of mental health or should his mental health deteriorate as he speculates, as a necessary and foreseeable consequence of being removed from Australia and returned to Pakistan.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4809

11 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction